Palaniammal vs T. Shanmugasundaram

R. Mala, J.—The Civil Revision petition is filed against the fair and decreetal order dated 23.01.2014 made in I.A.No.704 of 2013 in O.S.No.718 of 2011, on the file of the I Additional District Court, Coimbatore.

The revision petitioners herein as the plaintiffs filed a suit in O.S.No.718 of 2011 for partition and separate possession of their 3/4th share in the suit property. The first plaintiff''s sons are second plaintiff and first defendant. The third plaintiff is the daughter of the first plaintiff. The second defendant is the wife of the first defendant. The third defendant is the Indian Overseas Bank. During the trial, the revision petitioners/plaintiffs have come forward with an application in I.A.No.704 of 2013 to permit them to summon the third defendant/Bank to produce 10 documents as mentioned in the petition and to produce the same before the Court and to direct the third defendant to give evidence, if necessary. The trial Court, after hearing both sides, partly allowed the application in respect of summoning Document Nos.1 to 6 and disallowed the summoning of Document Nos.7 to 10, against which, the present revision petition has been preferred by the revision petitioners/plaintiffs.

Learned counsel for the revision petitioners submitted that one Thangaraj, who is the husband of the first plaintiff and father of the plaintiffs 2 and 3 and the first respondent, has carried on the business of process and sale of Ammonium nitrate in the name of M/S.TRS Enterprises, which is a proprietary concern. During his life time, the said Thangaraj has availed cash credit loan for running his business and his cash credit loan account number is 5319. After his death, the first defendant/first respondent has transferred the stocks of his father''s business to his own business. Hence, the documents pertaining to the business of the first respondent are necessary for ascertaining as to whether he has transferred the stocks to his business. Hence, the document Nos.7 to 10 are necessary for disposal of the suit. But the trial Court without considering the above aspect, dismissed the application. Hence, he prayed for allowing of this revision petition.

Resisting the same, learned counsel for the respondents submitted that the cash credit loan account No. 6397 has been opened by the first respondent to his separate business. Hence, the revision petitioners are not entitled to the documents pertaining to the separate business of the first respondent. It is further submitted that in para-5 to 7 of the counter filed by the first respondent, he raised the averments relating to his separate business and stated that the documents as sought for by the revision petitioners are not necessary. Hence, he prayed for dismissal of the revision petition.

The admitted facts of the case are as follows:

The husband of the first plaintiff, namely, Thangaraj, was running the business in the name of M/S.TRS Enterprises, wherein he carried out on the business of process and sale of Ammonium Nitrate. Now the first respondent is doing the same business.

The case of the revision petitioners/plaintiffs is that the first respondent has transferred the stocks from the father''s business to his business to work out his remedy and to prove the same, the document Nos.7 to 10 are necessary.

On perusal of typed set of papers, in page-36, the list of documents as sought to be summoned are given. The trial Court allowed the application filed by the plaintiffs/revision petitioners in respect of summoning of document Nos. 1 to 6 stating that they are related to item No. 3 of the suit properties. But the trial Court disallowed the summoning of document Nos.7 to 10 stating that there is no pleading with regard to document Nos.7 to 10.

It is seen from the above documents, it reveals that document Nos.1 to 6 pertain to original stock statement from 1.4.2011 to 31.03.2012 and from 1.4.2012 until date and records submitted by first respondent to M/S.Indian Overseas Bank, Gandhipuram Branch, Crosscut road, Coimbatore, statement of accounts pertain to cash credit loan account No. 5319, statement of account from the date of opening to till date pertains to the cash credit loan account No. 6397, Memorandum of understanding executed by the late Thangaraj pertains to cash credit loan account No. 5319. The document Nos.7 to 10 as sought to be summoned are extracted hereunder:

Memorandum of Understanding and/or any Memorandum of Deposit of Title Deeds executed by T.Shanmugasundaram pertaining to Cash Credit Loan Account No. 6397.

Nature of business (line of activity and what all commodities dealt with) of TRS.Enterprises with respect to cash credit loan account No. 6397.

Original stock statement submitted monthly from opening of new TRS Enterprises with respect to CC Loan A/C. No. 6397 to till date.

Guarantor details pertaining to mortgage made with respect to CC.Loan A/C.No.6397 of M/S.TRS Enterprises.

Considering the aforestated circumstances, since the first respondent is doing the same business as to what his father did and to prove that whether the stocks transferred from the father''s business to his business and to work out the share of the parties in the proceedings, summoning of document Nos.7 to 10 are necessary. If the documents are marked before the Court, no prejudice would be caused to the first respondent. Furthermore, both the revision petitioners and the respondents are entitled to test the veracity of the documents by way of cross-examination at the time of marking the documents. Therefore, I am of the view, the trial Court has committed an error in disallowing the document Nos.7 to 10, even though the documents as sought for are pertaining to separate business of the first respondent. Hence, I am of the view, the revision petition is allowed and the revision petitioners/plaintiffs are permitted to summon Document Nos.7 to 10.

In fine, the Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.